IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 6621 of 2001
For Approval and Signature:
Hon'ble MR.JUSTICE A.L.DAVE
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1. Whether Reporters of Local Papers may be allowed : NO
to see the judgements?
2. To be referred to the Reporter or not? : NO
3. Whether Their Lordships wish to see the fair copy : NO
of the judgement?
4. Whether this case involves a substantial question : NO
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the Civil Judge? : NO
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PARUL @ PARVATIBEN WIDOW OF AMBALAL MAGANBHAI MENA (LODHA)
Versus
COMMISSIONER OF POLICE
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Appearance:
1. Special Civil Application No. 6621 of 2001
MR CHETAN B RAVAL for Petitioner No. 1
MR D.P. JOSHI, AGP for Respondent State
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CORAM : MR.JUSTICE A.L.DAVE
Date of decision: 10/01/2002
ORAL JUDGEMENT
The petitioner came to be detained by virtue of
an order dated 26th July, 2001 passed by the Commissioner
of Police, Ahmedabad City, Ahmedabad in exercise of power
under Section 3 of the PASA Act. The petitioner seeks to
challenge the said order by this petition under Article
226 of the of Constitution of India.
2.The grounds of detention indicate that the
petitioner has been branded as a boot-legger. The
detaining authority has considered four registered
offences against the detenu under the Bombay Prohibition
Act. The detaining authority has also considered
statements of two anonymous witnesses and recorded a
satisfaction that powers under Section 9(2) of the Act
are required to be exercised in larger public interest.
The detaining authority recorded a satisfaction that the
petitioner is required to be immediately prevented from
pursuing his illegal and anti-social activities and
resorting to less drastic remedy under ordinary law is
not possible as immediate prevention is necessary and
therefore, passed the order in exercise of powers under
Section 3 of the PASA Act.
3.Learned Advocate Mr. Raval submitted that last
registered offence is of 14.4.2001, whereas the order is
passed on 26.7.2001 i.e. after a period of more than 3
months and 12 days and the live-link between the activity
of the petitioner and the order is snapped. The second
fold of contention of Mr. Raval is that the detaining
authority has exercised the power under Section 9(2) of
with-holding the name of the anonymous witnesses without
any basis. He submitted that the satisfaction recorded
by the detaining authority about the genuineness and
correctness of the fear expressed by the witnesses qua
the detenu is recorded without undertaking proper
exercise. The verification is done in a mechanican
manner as a formality. The exercise of power therefore
has infringed the right of the petitioner guaranteed
under Article 22(5) of the Constitution of India and the
continued detention of the detenu therefore would be
illegal. He therefore urged that the petition may be
allowed and the impugned order may be quashed and set
aside.
4.Learned AGP Mr. D.P. Joshi has opposed this
petition.
5.Having regard to the contentions raised, at the
out-set it would be noted that there is no material to
indicate that the detaining authority has undertaken
proper exercise of verification of the fear expressed by
the anonymous witnesses qua the detenu and its
genuineness. There is nothing to indicate that any
exercise except calling the witnesses was undertaken by
the authority. As observed by this Court in Bai Amina
w/o Ibrahim Abdul Rahim Alla Vs. State of Gujarat,
reported in 1981 GLR 1186, the authority is expected to
consider the general background, character, antecedents,
criminal tendency or propensity, etc. of the detenu and
such of those matters as are relevant in the context of
the informant must be enquired into and carefully
examined by the detaining authority with a view to
satisfying itself that the alleged apprehension is not
imaginary or fanciful or that it is not merely an empty
excuse invented by the informant, inter alie, to protect
himself against the falsity of his version being exposed
by an effective explanation of the detenu or to hide his
own involvement or to conceal his enmity with the detenu.
In this regard, decisions in the case of Kajalben G.
Sindhi Vs. Commissioner of Police, Ahmedabad, reported in
2000 (2) GLR 1296 and Israil @ Israr Pahelvan Nazirahmed
Shaikh Vs. State of Gujarat – 2001 (1) GLR 306 can be
profitably be employed.
5.1In order to meet with this requirement, the
detaining authority would be required to undertake a
further exercise in addition to examining the anonymous
witnesses. There is nothing to indicate that such an
exercise is undertaken. A witness who has stated
something before the sponsoring authority is bound to
stick to his version before the detaining authority when
he is summoned for verification, but what is stated by
him is correct and genuine or not can be tested only
after his version is cross-checked through other sources
by undertaking further exercise. That having not been
done, the subjective satisfaction cannot be said to have
been recorded on the basis of any material and therefore,
there is improper exercise of power under Section 9(2) of
the PASA Act.
6.So far as the registered offences are concerned,
they relate to 21st of Nov. 2000, 25th March, 2001 and
14th April, 2001. The order is passed on 26th July, 2001
and as such the live-link between the activity and the
order can be considered to have snapped as the order is
passed after more than 3 months. The satisfaction of the
authority about continuation of illegal activity by the
detenu therefore cannot be considered as genuine
particularly when the statements cannot be relied upon
for the reasons discussed above.
7.For the reasons stated hereinabove, the petition
deserves to be allowed and the same is allowed. Order of
detention dated 26.7.2001 passed by the Commissioner of
Police, Ahmedabad City is quashed and set aside. Detenu
Parul @ Parvatiben widow of Ambalal Maganbhai Mena
(Lodha) be released from detention forthwith, if not
required in any other case. Rule made absolute. No
costs. Direct service permitted.
(A.L.Dave,J.)
*/Mohandas